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Zina Laws As Violence Against Women in Muslim Contexts

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Zina Laws As Violence Against Women in Muslim Contexts Criminalizing Sexuality: Zina Laws as Violence Against Women in Muslim Contexts Ziba Mir Hosseini March 2010 THE GLOBAL CAMPAIGN TO STOP KILLING AND STONING WOMEN WOMEN RECLAIMING AND REDEFINING CULTURE PROGRAM WOMEN LIVING UNDER MUSLIM LAWS MARCH 2010 Summary Islamic legal tradition treats any sexual contact outside a legal marriage as a crime. The main category of such crimes is zina, defined as any act of illicit sexual intercourse between a man and woman. In the late twentieth century, the resurgence of Islam as a political and spiritual force led to the revival of zina laws and the creation of new offences that criminalize consensual sexual activity and authorize violence against women. Activists have campaigned against these new laws on human rights grounds. In this discussion paper, I show how zina laws and the criminalization of consensual sexual activity can also be challenged from within Islamic legal tradition. Far from mutually opposed, approaches from Islamic studies, feminism and human rights perspectives can be mutu- ally reinforcing, particularly in mounting an effective campaign against revived zina laws. By exploring the intersections between religion, culture and law that legitimate violence in the regula- tion of sexuality, the paper aims to contribute to the development of a contextual and integrated approach to the abolition of zina laws.. In so doing, I hope to broaden the scope of the debate over concepts and strategies of the SKSW Campaign. Author: Ziba Mir Hosseini* Editor: Rochelle Terman * I am grateful to Edna Aquino, Homa Hoodfar, Ayesha Imam, Muhammad Khalid Masud, and Lynn Welchman for reading and commenting on earlier drafts of this paper. My warmest thanks to Richard Tapper for his support and patience, for our discussions and for his skilful editing of the text. Any remaining shortcomings are mine. Copyright 2010 The Global Campaign to Stop Killing and Stoning Women and Women Living Under Muslim Laws www.stop-killing.org Criminalizing Sexuality Ziba Mir Hosseini Contents Ackowledgments and Summary1 1 Introduction3 2 Approach and Basic Concepts5 3 The Historical Context: Why Zina Laws and Why Now?8 4 Zina Laws in the Context of the Islamic Legal Tradition 11 5 Marriage (Nikah) and Covering (Hijab) 17 6 A Critique from Within 20 7 Summary and Conclusions 26 Appendices 29 A Elements of Islamic Legal Tradition 29 B Legal Schools (Madhab) 30 C Classification of legal rulings (ahkam) 31 References 40 2 Criminalizing Sexuality Ziba Mir Hosseini 1 Introduction Islamic legal tradition treats any sexual contact outside a legal marriage as a crime. The main category of such crimes is zina, defined as any act of illicit sexual intercourse between a man and woman.1 The punishment for zina is the same for men and women: one hundred lashes for the unmarried, and death by stoning for the married { though instances of these punishments are rarely documented in history. In the early twentieth century, with the emergence of modern legal systems in the Muslim world began, the provisions of classical Islamic law were increasingly confined to personal status issues.2 Zina penal laws, which were rarely applied in practice, became also legally obsolete in almost all Muslim countries and com- munities. In the late twentieth century the resurgence of Islam as a political and spiritual force reversed the process. In several states and communities, once- obsolete penal laws were selectively revived, codified and grafted onto the criminal justice system, and, in varying forms and degrees, applied through the machinery of a modern state. Most controversial have been the revival of zina laws and the creation of new offences that criminalize consensual sexual activity and authorize violence against women. Activists have campaigned against these new laws on human rights grounds. In this discussion paper, I show how zina laws and the criminalization of consensual sexual activity can also be challenged from within Islamic legal tradition. This paper is part of a cross-country study of adultery laws commissioned by Women Living Under Muslim Laws (WLUML)3 in connection with the Women's Reclaiming and Redefining Cultures Programme (WRRC) Global Campaign to Stop Killing and Stoning Women (SKSW).4 The campaign is a response to `women's experiences of the injustice and violence brought by the `Islamization' of criminal 1Apart from zina, other categories of sexual relations criminalized in classical legal tradi- tion are liwat, homosexual relations between men, and musahaqa, homosexual relations between women, neither of which are a major focus of this paper. 2For instance, many Arab states adopted the penalty for adultery and so-called crimes of passion from European penal codes (Abu-Odeh, 1996; Welchman and Hossain, 2005). The same happened in Iran. 3www.wluml.org. 4www.stop-killing.org. 3 Criminalizing Sexuality Ziba Mir Hosseini justice in some countries. It emerged through women's and human rights activism in countries as diverse as Nigeria, Iran, and Pakistan, and has spread elsewhere. The issues addressed by the SKSW Campaign resonate in many other Muslim contexts where traditional and patriarchal interpretations of Islam's sacred texts are invoked to limit women's rights and freedoms. In this paper, I offer a feminist and rights-based critique of zina laws that engages with Islamic legal tradition from within. In so doing, I hope to broaden the scope of the debate over concepts and strategies of the SKSW Campaign. I argue for the need to address what I consider to be two blind spots in approaches to the issue. First, scholars who work within an Islamic framework are often gender blind, being largely unaware of the importance of gender as a category of thought and analysis. They are often opposed to both feminism, which they understand to argue for women's dominance of men, and human rights, which they see as alien to Islamic tradition. Secondly, many women's rights activists and campaigners are not well-versed in religious categories of thought and religious- based arguments and find it futile and counter-productive to work within a religious framework. I believe these blind spots need to be cleared up. Far from mutually opposed, approaches from Islamic studies, feminism and human rights perspectives can be mutually reinforcing, particularly in mounting an effective campaign against revived zina laws. By exploring the intersections between religion, culture and law that legitimate violence in the regulation of sexuality, the paper aims to contribute to the development of a contextual and integrated approach to the abolition of zina laws. Zina laws are part of Islamic legal tradition, and must be situated within that tradition's classifications of human behaviour and especially sexual relations and gender roles, and the penalties that it prescribes for different categories of offences. Drawing on anthropological insights and feminist scholarship in Islam, I show how zina laws are also embedded in wider institutional structures of inequality that take their legitimacy from patriarchal interpretations of Islam's sacred texts. They are elements in a complex system of norms and laws regulating sexuality, and they are closely linked with two other sets of laws: those concerning marriage (nikah) and women's covering (hijab). This link is at the root of violence against women. After outlining my approach and clarifying some of the concepts used, I trace 4 Criminalizing Sexuality Ziba Mir Hosseini the historical context of shifts in the politics of religion, law and gender that led to the recent revival of zina laws and punishments, and the clash between two sys- tems of values and two conceptions of gender rights: those of international human rights law and Islamic legal tradition. Then I examine zina laws in the context of classical Islamic legal tradition, exploring the links with laws of marriage and dress code that regulate women's sexuality, and the theological assumptions and juristic theories that inform them. Finally, I show how zina laws and punishments can be challenged on legal and religious grounds and how essential elements of Islamic legal tradition are in harmony with human rights law. I conclude with suggestions or guidelines for developing a framework that can bring Islamic and human rights principles together. Such a framework can empower activists, at both theoretical and practical levels, to engage in an internal discourse within communities to bring about sustained legal and cultural reforms. 2 Approach and Basic Concepts First, it is important to recognize that both `human rights' and `Islamic law' are \essentially contested topics" (Gallie, 1956, pg.167-172). That is, they mean different things to different people and in different contexts. However, advocates of both claim universality; that is, they claim that their objective is to ensure justice and proper rights for all humanity. 5 I use the notion of `human rights' in a relatively limited sense, as a framework that began in 1948 with the Universal Declaration of Human Rights, and has been developed by the United Nations in subsequent documents and instruments. As human rights approaches are relatively well known, I devote more attention here to Islam, where I am concerned with legal traditions and discourses. It is important to recall that what we call Islamic law or Shari'a law in pre-modern times was what legal scholars today call `jurists' law', a matter of differing opinions and rulings (ahkam), developed independently of the state by particular jurists working within 5For insightful discussions on the tension between universalism and relativism in human rights, see: An-Na`im(1990, 1995b); Dembour(2001); Merry(2003); Sen(1998). For debates on the compatibility between Islam and human rights law, see: Baderin(2001, 2007); Bielefeldt(1995, 2000); Hunter and Malik(2005); Jahanpour(2007); Sajoo(1999); Strawson(1997). 5 Criminalizing Sexuality Ziba Mir Hosseini certain schools.6 These `laws' were applied by judges who, though they were appointed by the state, were accountable to the community and its mores, and were responsive to current social practices.
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